Labour Court Database __________________________________________________________________________________ File Number: CD94117 Case Number: AD9476 Section / Act: S13(9) Parties: CLONMEL CORPORATION - and - A WORKER;AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION |
Appeal against Rights Commissioner's Recommendation No. ST418/93.
Recommendation:
Having considered the submissions and the arguments the Court is
of the view that the appeal by the Corporation in respect of
Clauses A,C and D of the Rights Commissioner's recommendation
should be upheld and that Clause (B) of the recommendation be
implemented immediately.
It follows from the above that the Union's appeal on Clause (D)
must fail.
The Court so decides.
Division: Ms Owens Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD94117 APPEAL DECISION NO. AD7694
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
CLONMEL CORPORATION
(REPRESENTED BY LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD)
AND
A WORKER
(REPRESENTED BY AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION)
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
ST418/93.
BACKGROUND:
2. The dispute concerns a decision by the Company to impose a
1.5 days suspension without pay on the worker concerned.
On 12th January, 1993, the worker was detailed to work at
a sewer manhole. A supervisor arrived at the site and asked
why little progress had been made. The worker replied that,
due to the conditions, he was awaiting a "sewer bung" to
block the flow of raw sewage. The "bung" was to be installed
by a sewer crew. The supervisor requested the worker to
continue with the work. The worker refused. The supervisor
told the worker that he was "off duty" and asked him to
report back to base. The worker did not report back but
remained on site. The supervisor completed the work.
The worker was informed by the Borough Engineer that he was
to remain "off duty" pending an investigation into the
incident. The next day, following a meeting between the
Corporation and the worker's representatives, the worker was
informed that he was to be suspended for a day and a half
without pay. He was to resume work on 14th January, 1993.
The worker did not attend the meeting.
The dispute was referred to the Rights Commissioner and a
hearing took place on 15th December 1993. The Rights
Commissioner's recommendation follows:-
(a) I recommend that the claimant's suspension be
lifted and that he is reimbursed the wages lost.
(b) I recommend that the incident should be completely
scrubbed from his personnel file.
(c) I recommend that, should his attendance and time
keeping record to the 1/1/'95 be better than the
average for his grade, the Corporation should
favourably consider him for a return to bin lifting
duties when the first vacancy occurs or for relief
duties in that function.
(d) I recommend that the parties should jointly invite
the Labour Relations Commission to conduct an
Industrial Relations Audit covering the grades
represented by the Union or as agreed.
The Corporation appealed the recommendation to the Labour
Court on 16th February, 1994, under Section 13(9) of the
Industrial Relations Act, 1969. The Union appealed point D
on 21st February, 1994. A Labour Court hearing took place on
9th November, 1994 in Clonmel (the earliest date suitable to
the parties).
UNION'S ARGUMENTS:
3. 1. On the 12th January, 1993, the worker was waiting for a
"bung", promised by the Corporation, to be delivered.
Weather conditions were extremely bad. The worker did
not want to work in raw sewage for health reasons.
2. A number of other witnesses who were present at the site
on 12th January, 1993, including the Health and Safety
representative, confirm that conditions in the manhole
were unsuitable for working (details supplied to the
Court).
3. The worker was very upset following events on 12th
January, 1993. It was decided that attending the
meeting between the Corporation and Union on 14th
January, 1993, would be detrimental to his health. None
of the witnesses who could have testified on the
worker's behalf were called in to the meeting.
CORPORATION'S ARGUMENTS:
4. 1. The imposition of one and a half day's suspension
without pay was fair. The worker has a long history of
misconduct and poor attendance/performance. He has
received verbal and written warnings.
2. The worker repeatedly refused to do the work as
instructed by his supervisor. The Borough Engineer, who
investigated the site, was satisfied that the
supervisor's order to continue working was reasonable in
all the circumstances. The appropriate safety
arrangements, including the provision of equipment and
protective clothing, were fully complied with.
DECISION:
Having considered the submissions and the arguments the Court is
of the view that the appeal by the Corporation in respect of
Clauses A,C and D of the Rights Commissioner's recommendation
should be upheld and that Clause (B) of the recommendation be
implemented immediately.
It follows from the above that the Union's appeal on Clause (D)
must fail.
The Court so decides.
~
Signed on behalf of the Labour Court
28th November, 1994 Evelyn Owens
C.O'N./M.M. ____________
Chairman